Monday

Jun 17, 2019 at 9:36 PMJun 18, 2019 at 5:52 AM

WORCESTER — Lawyers for the Department of Justice Monday asked a federal judge in Worcester to dismiss a lawsuit filed here on behalf of asylum seekers nationwide who were separated at the border last year.

“There’s simply not jurisdiction (here),” Mary H. Mason, one of three Washington, D.C., lawyers who traveled to Worcester for the hearing, told Judge Timothy S. Hillman, arguing the case was improperly filed in Massachusetts and would not pass legal muster anyhow.

Lawyers for the plaintiffs — two migrant families living in Westboro who seek the right to sue on behalf of separated families nationwide — disagreed, arguing that officials acted outside the bounds of the law and should be held personally responsible.

“This case is remarkable, because what the defendants did here is remarkable,” Howard M. Cooper said, raising his voice as he described actions by border patrol agents that in his mind constitute “psychological torture.”

Mr. Cooper is one of nine attorneys from six firms representing two Guatemalan families living in Westboro who were separated after illegally crossing the southern border. The families aspire to secure damages and a mental health fund for themselves and thousands of others similarly separated at the border.

At the heart of the case at this stage is whether the federal court in Worcester has “personal jurisdiction” over the government officials being sued, which include former Attorney General Jeff Sessions and former Homeland Security Secretary Kirstjen Nielsen.

Ms. Mason said the lawsuit should have been filed in Washington, D.C., where the policymakers worked, arguing none of them have sufficient enough ties to Massachusetts to allow them to be tried here.

Additionally, she and colleagues argued the plaintiffs’ attempt to sue government officials personally will not withstand prior rulings, including a Supreme Court ruling, that she said properly protect policymakers and prosecutors.

“They are attacking a government policy,” DOJ lawyer Thomas G. Ward told Judge Hillman, adding that the judge would be “(alone) at sea” to allow them to use one of their primary arguments.

The plaintiffs are seeking what is called a “Bivens remedy," a remedy carved out in a 1971 Supreme Court case that allows people to sue for unconstitutional conduct carried out by individual federal officers.

The Supreme Court has since restricted the situations in which such a remedy could be applied, reasoning that Congress — not the judiciary — should enact laws that establish a framework for suing federal agents personally.

Government lawyers Monday said that Congress has not done so, and argued this case is not similar enough to the prior “Bivens” cases to make such relief legally possible.

Mr. Cooper rebutted that Congress accomplishes little, especially when it comes to border reform, and argued that at least three of the lawsuit’s nine counts would be covered under Bivens.

“If there is no Bivens remedy, there will be no remedy,” Mr. Cooper said, averring that the government is trying to improperly protect policymakers who acted unconstitutionally.

“This (lawsuit) is about deterring discrimination,” Mr. Cooper said. “It’s about deterring outrageous violations of the Fourth and Fifth amendments.”

Mr. Cooper criticized the government’s framing of the lawsuit as an improper attack on the administration’s “zero tolerance” policy on illegal immigration.

The policy, publicly announced in April 2018, involves prosecuting everyone who enters the country illegally.

Whereas government lawyers argue the lawsuit is an attack on the policy, Mr. Cooper argues the policy itself was announced to justify an unconstitutional practice of separating families caught illegally crossing the border.

In court documents, Mr. Cooper’s team noted that Ms. Nielsen in June 2018 denied having a policy of separating families, and that President Donald J. Trump “echoed” that statement.

“The government has argued a motion to dismiss on a completely false premise denied by their own clients,” he argued Monday, adding the issue here is “the discriminatory animus that was top down ... against immigrants (from Latino countries) properly seeking political asylum.”

Mr. Ward, one of the DOJ lawyers, countered that the policy “applied to everybody who came in on the southern border.” He added that while Mr. Cooper may have offered a good “opening argument,” the law is on the government’s side.

Mr. Ward argued Mr. Sessions and other DOJ brass are entitled to “qualified immunity” from personal liability because there is no clearly established right of people illegally crossing the border to not be separated from their families.

Mr. Ward said there are debates among courts on when a minor is considered “unaccompanied” — a term that becomes important when evaluating whether family separation is constitutionally permissible.

Judge Hillman, speaking to one of the plaintiff’s lawyers, remarked, “I am a little hung up on whether this right is clearly established, because it sure doesn’t feel like it is.”

The lawyer, Joseph M. Cacace, noted that issues of qualified immunity are generally decided later in a case. And he noted that, in a similar case in California, a judge ruled it likely parents would prevail on a charge that the continued separation of migrant families violated the Fifth Amendment.

“There is no compelling interest in traumatizing children,” Mr. Cacace said, arguing that Mr. Sessions and others can and should be liable for emotional distress caused by the border separations.

Mr. Cooper dismissed an argument from the government’s lawyers that the lawsuit would run afoul of laws established to protect policymakers and prosecutors.

“The government was not supposed to do what it did,” he said, arguing that the separations violated a 1997 agreement that set standards for the government’s care of children within the immigration detention system.

Judge Hillman took the arguments under advisement. He did not request arguments about a separate motion before him in which the plaintiffs seek to also add the U.S. government as a defendant.

Mr. Cacace said after the hearing that the government was not initially named as a defendant because of a six-month statutory waiting period that expired in April.

Mr. Cacace said the lawyers representing the Westboro families would continue to press the case if it is moved to the nation's capital.

While his clients have not been identified in court papers, the initials and stories of one of the families is identical to those of a family who spoke to the Telegram & Gazette at a rally in Westboro in 2018.

Elmer Oliva told the T&G that, after fleeing violence in Guatemala, his wife and kids were separated for five weeks, during which time, he alleged, his kids were mistreated in a detention center.

Contact Brad Petrishen at brad.petrishen@telegram.com. Follow him on Twitter @BPetrishenTG.

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